Final
status for claims (as submitted to Express, and published on 17 April 2006)

Henry H. Perritt, Jr.

Kosovo’s new political leadership can be proud of its early
success in increasing international respect for Kosovo’s ability to govern
itself effectively and to make changes in political leadership when that seems
appropriate.The success of an
independent Kosovo can be assured only by a continuation of results-oriented,
focused top leadership.A further hallmark
of Kosovo’s effectively functioning democracy is that the political opposition
cooperated in making the changes. Fatmir Sejdiu, Agim Ceku,
Ramush Haradinaj, Hashim Thaçi, Veton Surroi and others are exercising
commendable leadership

There is, however, much work to be done both to win independence
through the final status negotiations, and to build a foundation so that an
independent Kosovo will be successful and fulfill the hopes and dreams of all
of its peoples.Many of the hallmarks of
success already are receiving serious attention by final status negotiators and
observers of the negotiations.One
matter, however, deserves greater attention than it has received in the
past:a mechanism for resolving
competing financial claims growing out of Kosovo’s difficult past.

Part of the final status negotiations must be the design and
initial implementation of an appropriate mechanism for resolving competing
property and contract claims incident to housing disputes, privatization,
pension funds, and past public investment in Kosovo’s infrastructure.

Quite recently, headlines in Belgrade
asserted that Serbia
continues to pay the costs of benefits that accrue to the government and people
of Kosovo—in this case am overly general headline growing out of controversy
over the privatization of ski facilities in Brezovica.

Many such controversies exist over competing claims to SOE
property, over claims to pensions, over claims to recover public infrastructure
investment, over claims for personal injuries, and over claims to assets owned
by the government of Serbia
and the past Yugoslavia.

Addressing these issues and settling the claims may seem
like an esoteric matter that could wait to be addressed until well after final
status for Kosovo has been implemented.But the problem cannot wait.Resolving
these conflicting claims conclusively will require an international
mechanism.Serb interests will not trust
the legal institutions in an independent Kosovo to make binding decisions.Kosovar interests will not trust Serb
institutions to make binding decisions.International creditors and asset holders will not trust either system
of national institutions.After final
status negotiations are concluded, a good opportunity to forge the necessary
international institutions will have been lost, and it is far from clear that
any set of stakeholders will have the muscle, after independence, to force
others in the international community to pay attention to their claims or their
decisions.

Now, however, with international attention focused on the
final status negotiations, and each side being pressed to make concessions,
enough leverage exists to force people to pay attention to claims resolution.

About 18 months ago, I wrote a law review article on
possible claims resolution machinery for Kosovo, as part of a symposium on
final status for Kosovo held in Chicago and jointly sponsored by Chicago-Kent
College of Law the University of Prishtina Law Faculty, The Chicago Council on
Foreign Relations, the McCormick Tribune Foundation, and Northwestern
University’s Center for International and Comparative Law.In that article, I did not promise the final
answer, but instead described models that had been used in other contexts,
which may be promising for Kosovo.For
Kosovo, the most interesting model would be an international claims resolution
tribunal, agreed to by the governments of Kosovo and Serbia, and also supported by major
financial institutions in the major powers.This claims resolution tribunal would have jurisdiction to make final
decisions with respect to governmental and private claims and would have
control over assets potentially subject to those claims.It would displace litigation in national
courts over a defined universe of claims.

The government of Kosovo should make sure that a serious
discussion of these and other models should begin in the discussion of economic
issues scheduled for early May.